Smith v. Bergh

OPINION AND ORDER DENYING PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

ROBERT
H. CLELAND, UNITED STATES DISTRICT JUDGE.

Petitioner
Howard Smith has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Following a bench
trial in the Wayne County Circuit Court, Petitioner was
convicted of second-degree murder, Mich. Comp. Laws §
750.317, carrying a concealed weapon, Mich. Comp. Laws §
750.227, felon in possession of a firearm, Mich. Comp. Laws
§ 750.224f, and possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b. He
was sentenced to 20 to 35 years imprisonment on the murder
conviction, concurrent terms of one to five years
imprisonment on the concealed weapon and felon in possession
convictions, and a consecutive term of two years imprisonment
on the felony firearm conviction. In his pleadings,
Petitioner raises claims concerning double jeopardy, the
sufficiency of the evidence, the conduct of the prosecutor,
the application of state self-defense law, and the
effectiveness of trial and appellate counsel. For the reasons
that follow, the court denies with prejudice the habeas
petition. The court also denies a certificate of
appealability and denies leave to proceed in forma pauperis
on appeal.

Smith's convictions arise from the shooting death of
Farrod Potter during the early morning hours of June 27,
2010, outside a lounge in Detroit. At trial, several
witnesses, including Raymond Grant, testified that they had
celebrated a family birthday at the lounge. As Grant was
entering the lounge, he accidentally stepped on Smith's
shoe. Grant apologized to Smith before they continued on
their separate ways. Near the lounge's closing time,
Smith followed Grant's aunt across the street to talk.
Shortly thereafter, Grant and a group of friends, including
Potter, came across the street. Grant again apologized to
Smith, who declined to acknowledge his acceptance of the
apology. Although Grant became irritated by Smith's
attitude, the testimony of the several trial witnesses
consistently described that Grant and his acquaintances
walked away from Smith back toward the lounge or their cars.
Smith, who was armed with a .25-caliber handgun, jogged or
walked in pursuit of Grant and his acquaintances. Smith
declared that he should shoot someone in the back, after
which Smith drew his handgun. Grant grabbed Smith around his
arms to prevent Smith from shooting, but Smith was able to
raise the gun toward Potter and shoot him once in the chest.
No evidence suggested that Grant or his acquaintances
possessed weapons of any kind that morning, or that any of
them ever threatened Smith. Smith raised a self-defense claim
at trial.

Following
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising the
following claims:

I. Convictions and sentences for both felon in possession of
a firearm and felony firearm violate the Double Jeopardy
Clause. U.S. Const. amend. V.

II. The conviction for second degree murder, carrying a
concealed weapon, and felony firearm must be reversed where
the prosecution failed to present sufficient evidence to
disprove self-defense, thus violating his Amends. V and XIV
rights to be convicted only upon proof beyond a reasonable
doubt.

III. The evidence was insufficient to support the charge of
second-degree murder. If at all, the conviction can be no
more than involuntary manslaughter.

IV. The prosecutor committed misconduct by misleading the
court when presenting and offering a stipulation during
closing arguments that was never stipulated to by the defense
and when presenting misleading witness testimony, which
deprived Defendant of a fair trial and violated
Defendant's right to due process under the Michigan and
United States Constitutions.

V. Trial counsel's failure to object to and preserve the
prosecution's misleading misstatements of witness
testimonies, along with his misrepresentation of stipulations
offered to the court during trial, deprived Defendant of his
state and federal constitutional right to effective
assistance of counsel and a fair trial.

The
court denied relief on those claims and affirmed his
convictions. Id. at *1-6. Petitioner then filed an
application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v.
Smith, 492 Mich. 867, 819 N.W.2d 873 (2012).

Petitioner
subsequently filed a motion for relief from judgment with the
state trial court raising the following claims:

I. Did the trier of fact apply the incorrect law of self
defense violating the due process rights of the defendant as
guaranteed to him under the U.S. Const. and the Mich. Const.
1963, Art. 1 §§ 17, 20?

II. Must Defendant's second-degree murder conviction be
reversed where the prosecution failed to establish the
necessary elements beyond a reasonable doubt, resulting in
the violation of Defendant's due process rights under the
U.S. Constitutional Amendment V and XIV, and the Michigan
Constitution 1963, Art 1, §§ 17, 20?

IV. Did the prosecutor commit misconduct and abuse his
authority by overcharging Defendant with second-degree murder
where the facts and evidence only supported self-defense
accidental death, or at most, manslaughter, denying Defendant
his due process rights under the U.S. Const. Amends. V, VI,
XIV, and the Mich. Const. 1963, Art. 1 §§ 17, 20?

V. Did the prosecutor commit misconduct by arguing facts not
in evidence, violating Defendant's due process rights
under the U.S. Const. Amends. V, VI, XIV, and the Mich.
Const. 1963, Art. 1 §§ 17, 20?

VI. Was Defendant denied effective assistance of trial
counsel, violating his constitutional rights under [both]
state and federal Constitutions where counsel failed to
present evidence that would have been exculpatory in nature?

VII. Was Defendant denied his right to the effective
assistance of appellate counsel where counsel failed to raise
the herein issues on direct appeal. U.S. Const. Amends. VI
and XIV; Mich. Const 1963, Art. 1, §§ 17, 20?

The
court denied relief citing Michigan Court Rule 6.508(D)(2)
and (D)(3). The court also ruled that Petitioner failed to
establish that appellate counsel was ineffective. People
v. Smith, No. 10-007618-01-FC (Wayne Co. Cir. Ct. Oct.
25, 2013). Petitioner then filed an application for leave to
appeal with the Michigan Court of Appeals, which was denied
“for failure to establish entitlement to relief under
MCR 6.508(D).” People v. Smith, No. 319896
(Mich. Ct. App. June 27, 2014). Petitioner also filed an
application for leave to appeal with the Michigan Supreme
Court, which was similarly denied. People v. Smith,
497 Mich. 1010, 861 N.W.2d 893 (2015).

Petitioner
thereafter filed his federal habeas petition. (Dkt. #1.) He
raises the 12 claims that he raised on direct appeal and
collateral review of his convictions in the state courts.
Respondent has filed an answer to the petition (Dkt. #5)
contending that it should be denied because the claims lack
merit and/or are barred by procedural default.

III.
Standard of Review

The
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), codified at 28 U.S.C.
§ 2241 et seq., govern this case because
Petitioner filed his habeas petition after the AEDPA's
effective date. Lindh v. Murphy, 521 U.S. 320, 336
(1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

28 U.S.C. § 2254(d) (1996).

“A
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[that] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)); see also
Bell v. Cone, 535 U.S. 685, 694 (2002).

“[T]he
‘unreasonable application' prong of §
2254(d)(1) permits a federal habeas court to ‘grant the
writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably
applies that principle to the facts of petitioner's
case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413); see
also Bell, 535 U.S. at 694. However, “[i]n order
for a federal court find a state court's application of
[Supreme Court] precedent ‘unreasonable, ' the
state court's decision must have been more than incorrect
or erroneous. The state court's application must have
been ‘objectively unreasonable.'”
Wiggins, 539 U.S. at 520-21 (citations omitted);
see also Williams, 529 U.S. at 409. “AEDPA
thus imposes a ‘highly deferential standard for
evaluating state-court rulings, ' and ‘demands that
state-court decisions be given the benefit of the
doubt.'” Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Lindh, 521 U.S. at 333, n. 7;
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)).

A state
court's determination that a claim lacks merit
“precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The Supreme Court has emphasized “that even a
strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id.
(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or . . . could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision" of the Supreme
Court. Id. Thus, in order to obtain habeas relief in
federal court, a state prisoner must show that the state
court's rejection of his claim "was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id.; see also
White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1702
(2014). Federal judges “are required to afford state
courts due respect by overturning their decisions only when
there could be no reasonable dispute that they were
wrong.” Woods v. Donald, __ U.S. __, 135 S.Ct.
1372, 1376 (2015). A habeas petitioner cannot prevail as long
as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be
reasonable. Woods v. Etherton, __ U.S. __, 136 S.Ct.
1149, 1152 (2016).

Section
2254(d)(1) limits a federal habeas court's review to a
determination of whether the state court's decision
comports with clearly established federal law as determined
by the Supreme Court at the time the state court renders its
decision. Williams, 529 U.S. at 412; see also
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting
that the Supreme Court “has held on numerous occasions
that it is not ‘an unreasonable application of clearly
established Federal law' for a state court to decline to
apply a specific legal rule that has not been squarely
established by this Court”) (quoting Wright v. Van
Patten, 552 U.S. 120, 125-26 (2008) (per curiam));
Lockyer, 538 U.S. at 71-72. Section 2254(d)
“does not require a state court to give reasons before
its decision can be deemed to have been ‘adjudicated on
the merits.'” Harrington, 562 U.S. at 100.
Furthermore, it “does not require citation of [Supreme
Court] cases-indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor
the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002);
see also Mitchell, 540 U.S. at 16.

The
requirements of clearly established law are to be determined
solely by Supreme Court precedent. Thus, “circuit
precedent does not constitute ‘clearly established
Federal law as determined by the Supreme Court'”
and it cannot provide the basis for federal habeas relief.
Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per
curiam); see also Lopez v. Smith, __ U.S. __, 135
S.Ct. 1, 2 (2014) (per curiam). The decisions of lower
federal courts, however, may be useful in assessing the
reasonableness of the state court's resolution of an
issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.
2007) (citing Williams v. Bowersox, 340 F.3d 667,
671 (8th Cir. 2003)); Dickens v. Jones, 203
F.Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.). A state
court's factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. §
2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161
F.3d 358, 360-61 (6th Cir. 1998). Lastly, habeas review is
“limited to the record that was before the state
court.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011).

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